Wednesday, August 21, 2013

Beware the spooky servants of the secret state!

The Guardian
publication of stories based on leaked information from the former NSA apparatchik,
and the unlawful arrest and detention of David Miranda by officials at Heathrow
Airport is beginning to become a huge cause celèbre, and as is so often the
case in these examples, the involvement of ministers and their shadowy servants
begins to become clearer!

It now becomes clear
that this grubby exercise in the abuse of power goes right up to the Prime
Minister, and involves the Deputy Prime Minister and the Home Secretary!

The Guardian has
been publishing articles which no doubt have the potential to be very
embarrassing to ministers and officials, but as far as is yet known, the
Guardian hasn't published anything that comes remotely close to containing
information which might be of value to terrorists.

Nevertheless, there
is clearly something very, very fishy going on here, because the number of
people involved in seeking to put pressure on the Guardian, (and the arrest and
harassment of David Miranda must now be seen clearly in that light) is growing
in stature and sensitivity by the day!

What started off
with a ".. What us.?" kind of response from the Home Office, and an
insouciant early fob-off "...These are matters for the Police..." has
now become a matter where it is clear that this is a case which comes directly
out of M.I.6 Central, and where the police have just been used as convenient
dummies to carry out the executive orders of the Secret State.

As more facts become
known, the more this whole case smells more and more of political bullying
designed to bring pressure on a responsible and respected newspaper, and
designed to protect the reputations of Officials and to try and show their US
counterparts that they know how to play hardball.

Theresa May would
have garnered more credibility and credence if when asked, she had come
straight out and told the truth, instead of indulging in weasel words and
seeking to assert that this was just a minor administrative exercise carried
out by the police and not involving ministers.

As it turns out,
senior politicos and civil servants have been engaged in this up to their necks
from the start, and that just adds to its 'spooky' quality.

Senior Whitehall
sources confirmed to The Independent Newspaper the Prime Minister’s
central role in trying to limit revelations about UK and US intelligence
operations contained in information the whistleblower received from the
National Security Agency.

David Cameron
instructed the Cabinet Secretary to contact The Guardian to spell out
the serious consequences that could follow if it failed to hand over classified
material from the NSA whistleblower and US fugitive.

Nick Clegg backed
the decision to send top civil servant Sir Jeremy Heywood to urge The
Guardian to destroy classified data received from Edward Snowden because
it was “preferable” to taking legal action.

This is all
bollocks, actually. If the Guardian had information that was somehow obtained
in a compromising way, why did the secret state just not simply exercise a
search warrant or issue a production order or an injunction?

I can understand
that the Guardian's editor, Alan Rusbridger didn't want to get into expensive
litigation at this stage, he doesn't have to because the information concerned
will be happily resting in secure servers in other parts of the world where
British spooks can't get their grubby hands on it, so he doesn't need to
protect it in his office. The spooks know this as well, so all this smashing up
hard drives was a theatrical exercise in state bullying, just saving the face
of the GCHQ toadies.

Mr Clegg agreed to
the move on the understanding that destruction of the material would not
impinge on the The Guardian's ability to publish articles. The Deputy
Prime Minister was "keen to protect" the newspaper's freedom to
publish while safeguarding national security, his spokesman said.

What utter cobblers,
Clegg knows damn well that this was just an exercise in state arm twisting,
like the school bully trying to look big in the playground.

What makes it even
more grubby is that the Home Secretary, Theresa May, confirmed she had been
briefed in advance of the detention, she won't say how far in advance she was
briefed, but insisted it was the police who had made the decision to stop and
question Mr Miranda on his way through Heathrow from Berlin.

Now this is where it
begins to become a bit legally technical.

If Ms May was
briefed in advance of the detention, it means that the decision to pull Miranda
on his way through LHR had already been made. The request would have come from
spook control through the Met Police liaison unit to officers on the ground.
They would have been briefed as to their target and possibly told why the
spooks wanted him stopped.

They, the police,
would almost certainly, not have had any information or reason to stop Miranda,
they do not get involved on a day-to-day basis on such issues, nor would they
have had any reason to need to know about Miranda and his journey, until they
were told to detain him.

So the trail gets
even murkier. The police now knew that someone, somewhere, wanted to have a
long chat to Miranda, so they now had a 'reasonable cause to suspect him' . It
doesn't matter what they might have suspected him or what for, but he was now
an object of suspicion. When police engage with such people, certain civil
liberties immediately come into play when they are arrested, like the right to
remain silent, the right to a solicitor, etc. All this talk about Miranda not
being arrested is all so much tosh and weasel words. As soon as his forward
momentum was prevented and hands were laid on him or his ability to do what he
wanted was removed from him, he was under arrest, pure and simple, and his
rights as an arrested man came into operation.

Thankfully, it isn't
just me making this assertion. The former lord chancellor Lord Falconer of
Thoroton said today that the Metropolitan police had no legal basis to detain David
Miranda under the Terrorism Act of 2000. This has led to the usual and
typical piece of ground shifting and denials from Theresa May, although she is
no lawyer.

Amid a warning from
Falconer that the authorities had "incompetently" used the wrong law
to detain Miranda, Ms May said that the police had acted within the correct
"framework", whatever the hell that means!

But Ms May, seeking to hide behind the police coat
tails, used highly cautious language and only endorsed the police action after
being asked three times by Martha Kearney on Radio 4's The World at One about
Falconer's claim that the Terrorism Act of 2000 provided no legal basis to
detain Miranda.

In a Guardian
interview today, Lord Falconer said the act makes clear that police can only
detain someone under schedule 7 to the act to assess whether they are
involved in the commission, preparation or instigation of terrorism.

He told the
Guardian: "I am very clear that this does not apply, either on its terms
or in its spirit, to Mr Miranda."

The former lord
chancellor later told The World at One that the authorities should have used an
injunction – rather than anti-terror laws – if it believed that Miranda was
carrying documents that contained information that could help terrorists if it
fell into the wrong hands.

Falconer said:
"If the government are so concerned about this – and I can understand that
they might be – use the powers competently and in accordance with the law.
Don't use the wrong powers and don't use them incompetently."

Ms May initially
declined to respond to Falconer's criticism. Asked by Kearney about his claim
that the act provided no basis to detain Miranda, the home secretary criticised
the Today programme presenter Evan Davis for suggesting earlier that the
authorities were taking action to avoid embarrassment to the government. Like
all politicos, she seeks to lay the blame elsewhere!

Asked for a second
time about Falconer's claim, May said that the Met had decided they were acting
legally. When she was asked for a third time about Falconer's claim, May
finally endorsed the police action.

The home secretary
said: "It is absolutely right it is the duty of government to protect the
public. It is absolutely right if the police believe that somebody has in their
possession highly sensitive stolen information that could help terrorists, that
could lead to a loss of lives – it is right that the police should act. I
believe that schedule 7 of this act enables the police to do that. It gives
them the framework for that."

Here May betrays her
lack of competent legal knowledge, because as Lord Falconer has said, the
police do not have the powers to act
under section 7 under the circumstances outlined by the Home Secretary! They
may have powers to act under other legislation, but then that has consequences
because it protects the rights of suspects.

May also became the
first member of the cabinet to respond to the disclosure that the cabinet
secretary, Sir Jeremy Heywood, demanded that the Guardian destroy hard drives
containing leaked NSA documents or risk legal action.

"Are you saying
if [the] government believes there is information that is a potential danger to
national security, that could be helpful to terrorists, that is being held
potentially insecurely, that could fall into the wrong hands that government
should not act on that? I take a different view."

Well, if that's the
case Ms May, in future do what Lord Falconer recommends and use the proper
powers and act responsibly and stop trying to use these draconian powers to
bully the newspaper.

Everything that now
follows in this case becomes subject now to judicial enquiry and review.
Included in such an enquiry must be searching questions as to the truth of the
answers provided by the officials who were holding Mr Miranda. It is highly unlikely
that they were all police officers. There may have been a Special Branch
officer present just to pay lip service to the protocol that this was a police
operation, but my guess is that most of the questioning came from the spooks.

A lawyer for Mr
MIranda was sent to Heathrow.It is reported by Bindmans, the solicitors for Mr
Miranda that; “He was persistently blocked by officials for a long period from
gaining access to the room where the questioning was taking place. The
detention lasted nine hours, the legal limit of Schedule 7 of the Terrorism
Act. He finally gained access only
during the last hour.”

The lawyer reported that
Mr Miranda’s request for a pen or pencil to write down details of the questions
he was asked was repeatedly refused. He says he was also unclear about just who
was questioning him.

The Home Office
claim the questioning was “a Met-led operation” and involved six people.

Scotland Yard stated it could not comment on who may or may not have been
involved.

Security sources
contacted by The Independent admit MI6 officials could have been
involved. Bindmans said this account did not surprise them. “It was unclear
throughout just who exactly was doing the questioning,”

Government sources
deny the Prime Minister was involved in “intimidation” of a Fleet Street
editor. One source said “There was no injunction, no arrests. We just wanted to
get these documents [in Snowden’s possession] back.”

So there we have it,
I think this story have even more legs than we have yet realised and that it
will develop like a mature cheese (it will get smellier and smellier) as the
days pass. We must watch with interest the process of Bindmans' application for
Judicial Review.

What this story
proves yet again however, is that we all do well to be on our guard to be
absolutely sure we know exactly what information about us government, whether
here or in the US is garnering about us and our individual lives. We need to be
vigilant because as we have seen, when it suits them, the spooks will always
bend the law to its limits to get their own way.

About Me

Having spent my career dealing with financial crime, both as a Met detective and as a legal consultant, I now spend my time working with financial institutions advising them on the best way to provide compliance with the plethora of conflicting regulations and laws designed to prevent and forestall money laundering - whatever that might be! This blog aims to provide a venue for discussion on these and aligned issues, because most of these subjects are so surrounded by disinformation and downright intellectual dishonesty, an alternative mouthpiece is predicated. Please share your views with what is published here from time to time!